Punishment, Proportionality, and the Death Penalty: A Reply to Chris Tollefsen

While not explicitly denying the principle of proportionality, Tollefsen implicitly rejects it, leaving his argument not only counterintuitive but incoherent.

In a recent Public Discourse article, I argued that if we acknowledge that punishment as such is legitimate, and that a punishment ought to be proportional to the gravity of the offense, then we cannot fail to agree that capital punishment can, in principle, be appropriate for the most serious crimes. This position is critical of Chris Tollefsen’s case against capital punishment, for to hold, as Tollefsen does, that the death penalty is inherently immoral is thus implicitly to reject either the legitimacy of punishment as such or the principle of proportionality.

Tollefsen has replied to my article, affirming that punishment as such is legitimate. To maintain his absolute opposition to capital punishment, then, he must reject the principle of proportionality, which he does implicitly if not explicitly in his response. This rejection, however, makes his overall position incoherent.

Consider first how a rejection of the principle of proportionality is indeed implicit in Tollefsen’s position. The crimes of serial killers like Jeffrey Dahmer and Ted Bundy, or of genocidal dictators like Hitler or Stalin, are obviously far worse than those of someone guilty only of (say) a single, painless murder or treason. Given the principle of proportionality, then, they merit a harsher penalty. Of course, in practice, such a penalty might be impossible to inflict: there is no way to execute a Bundy or a Hitler more than once. Hence, in practice, a sadistic mass murderer may end up receiving the same punishment as someone guilty of a single murder. On Tollefsen’s view, however, the worst of these offenses ought never, even in principle, to be punished more severely than the others; they do not entail a penalty proportional to their gravity. If Tollefsen is right, life in prison is the harshest sentence that any of the offenders in question could ever receive legitimately, even if it were possible to penalize them in proportion to their offense, and even though it is possible to give a one-time murderer a proportionate penalty. (Some opponents of capital punishment also maintain that life imprisonment is contrary to human dignity; whether Tollefsen agrees with them, I do not know.)

Such a result, unable as it is truly to “fit” the punishment to the crime, hardly seems consistent with justice. Tollefsen’s position, however, is not merely counterintuitive; it is incoherent. As I noted in my original article, “we cannot plausibly reject [the principle of proportionality] without rejecting the notions of desert and punishment along with it.” Tollefsen would no doubt agree that punishment can be justifiable at all only on the assumption that the offender merits it. Harming someone merely to convince him to change his mind, or to discourage others from acting as he does, cannot be just; such corrective and deterrentends of punishment can be pursued legitimately only if the retributive end is also in view, which presupposes that the harm is deserved. Now there is no such thing as deserving only some degree of punishment or other, any more than there is such a thing as being of some height or other. To have height is to have some specific height, and to deserve punishment is to deserve some specific degree of punishment. Proportionality, then, is built into the notion of desert, and thus is built into the notion of punishment. (While we might not always be able, in practice, to determine exactly what degree of punishment some offense merits, that does not mean that there is no such degree, any more than the fact that some object might be too small or too large for us to measure entails that it does not have a specific height.)

In short, the legitimacy of punishment entails desert, and desert entails proportionality; hence, to deny proportionality is implicitly to deny desert, and thus to deny the legitimacy of punishment. Though Tollefsen affirms the legitimacy of punishment explicitly, he denies it implicitly insofar as he denies the principle of proportionality. If Tollefsen wants to avoid this conclusion, he owes us some account of how he can reconcile his position with proportionality and thus with an intelligible notion of desert.

Tollefsen implies that my own position faces a dilemma. Rape, he correctly notes, is “intrinsically wrong” and thus “not available as an option for punishment, regardless of its feasibility or the proportion of goods to bads it might bring about.” So if I were to claim, on the basis of the principle of proportionality, that a rapist could at least in principle be punished with rape, my position would entail a falsehood. If I acknowledge instead (as I do) that the principle of proportionality cannot justify rape, even in principle, as a legitimate punishment, then (Tollefsen concludes) I should agree that it also cannot, by itself, justify capital punishment, even in principle.

The argument breaks down, however, because there is a crucial disanalogy between rape and the taking of someone’s life. To take a life is, essentially, to inflict a single harm—the taking of the life. (Of course, other harms might follow from this—one’s children might be orphaned, one’s spouse widowed—but the taking of a life would still be a harm, even if such harms didn’t follow.) Rape, however, essentially involves several harms—there are the humiliation and bodily harm inflicted on the victim, but there is also the sexual perversion and sadism by which the rapist harms his own character. Now to indulge in such sexual perversion and sadism is intrinsically immoral; and therefore rape is intrinsically immoral, even if carried out as a punishment. Nor does the principle of proportionality imply otherwise. Rather, it implies, at most, only that a rapist deserves the humiliation and bodily harm he has inflicted on others—just as it implies that a murderer deserves to suffer the same harm he has inflicted on others—but it does not imply that anyone, including those with authority to punish wrongdoers, can legitimately indulge in the sexual perversion and sadism that are also involved in rape.

To be sure, I would say that we should not, in practice, inflict humiliation and bodily harm, sexual or otherwise, on a rapist, both out of mercy and because of the moral hazard that inflicting such a penalty would pose to the punisher. I imagine that Tollefsen, however, might deny that humiliation and (non-sexual) bodily harm can ever, even in principle, be legitimate forms of punishment. These too, he might allege, are inherently contrary to human dignity in just the way he thinks capital punishment is. But unless he provides an argument for such a claim, he will merely have begged the question, and will not have provided a counterexample to the claim that the principle of proportionality suffices, by itself, to tell us that a certain punishment (such as capital punishment) can, in principle, be legitimate.

Tollefsen’s positive argument for his own position is no more convincing than his criticisms of mine. He claims that while “instrumental goods” such as “liberty and money” may be taken away from an offender in punishment for his offense, a “basic or intrinsic” good such as human life cannot be. “As a basic, or intrinsic, human good,” Tollefsen posits, “human life, just in itself, gives us only reasons for its pursuit, promotion, and protection, and no reason for its damage or destruction.” But from the claim that “life, just in itself, gives us no reason ever to destroy life but only reason to protect it,” it does not follow that “There is no reason ever to destroy life, but only reason to protect it.” There may be reasons derived from something other than “life, just in itself,” to destroy life in some cases rather than protect it. Indeed, the principle of proportionality gives us just such a reason. While Tollefsen does not think it is a good reason, he has not yet offered, without begging the question, any grounds for his opinion.

In an attempt to ground his disagreement, Tollefsen repeats the claim from his earlier essay that “human beings have intrinsic dignity,” which gives even the life of a mass murderer a “sacred or inviolable quality.” This is just assertion, however, not argument. What he needs to do is to explain why human dignity—which defenders of capital punishment typically affirm no less than its critics do—forbids ever taking life. After all, life by itself can’t be what gives human beings their dignity; plants and non-human animals also have life, and yet Tollefsen would not deny that it is legitimate to kill them. What is it, then, that makes human beings different from plants and other animals? The traditional answer is that human beings have reason and free will. Unlike other animals, we can understand what various possible courses of action entail, and can choose how to act in light of this understanding. That is why our behavior is uniquely subject to moral evaluation; we alone possess the liberty of choice and action that makes moral life possible. It is why, unlike plants, animals, and inanimate objects, we cannot be treated merely as means to others’ ends—and thus why kidnapping, slavery, and the like are grave evils.

Now, though our liberty flows from the rationality and free choice that are unique to us, and which are surely the source of our special dignity, even Tollefsen agrees that a criminal can justly be deprived of this liberty. Indeed, the very possibility of punishment presupposes this, since even the mildest punishment typically involves inflicting a harm on the offender to which he does not consent. So, if life is not unique to us and thus cannot be what gives us our special dignity, how can depriving an offender of his life be intrinsically wrong? And if life is a “basic, intrinsic good,” then why shouldn’t liberty of choice and action—which flows from the rationality and freedom that are unique to us and do give us our special dignity—also be regarded as a “basic, intrinsic good”? Yet Tollefsen regards this liberty as a “merely instrumental” good, the taking away of which is not contrary to human dignity!

If there is any principled reason for mapping this moral territory in such a peculiar fashion, Tollefsen does not make clear what it is. Given that it is our capacity for rationality and free choice that affords us our special dignity, liberty of action would seem to be no less basic and intrinsic a good than life is. In that case, Tollefsen is faced with a dilemma: He can either say that neither life nor liberty can ever legitimately be taken from a wrongdoer—which would be absurd, and would undermine the very possibility of punishment—or he can say that a wrongdoer can be deprived of his liberty, even though it is a basic, intrinsic good—in which case he will have to admit that the status of life as a basic, intrinsic good does not entail that capital punishment is inherently immoral.